Balc v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: MR JUSTICE MICHAEL PEART
• Judgment Date: 07 March 2018
• Neutral Citation: [2018] IECA 76
• Date: 07 March 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 76

BETWEEN:

TRAIAN BALC, DOINA BALC

AND

ALINA BALC

APPELLANTS

- AND -

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2018] IECA 76

Peart J.

Ryan P.

Peart J.

Hedigan J.

Neutral Citation Number: [2018] IECA 76

Record Number: 225/2016

THE COURT OF APPEAL

Removal order – Exclusion period – Certified question – Applicant seeking judicial review – Whether, once a review decision is made pursuant to Regulation 21(4) of the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 confirming a removal order made under Regulation 20(1)(a) of those Regulations, that order itself loses its amenability to judicial review

Facts: The first and second applicants, Mr and Mrs Balc, were husband and wife. The third applicant, Ms Balc, was their daughter. They were all Romanian nationals who arrived in the State in March 2007. The first applicant was removed from the State pursuant to a removal order dated the 26th February 2015 made by the respondent, the Minister for Justice and Equality, pursuant to the provisions of Regulation 20 of the European Communities (Free Movement of Persons) Regulations 2006 and 2008. The removal was effected on the 17th May 2016 following the order of the High Court (Eager J) made on the 16th February 2016 whereby the applicants' application for reliefs by way of judicial review (including for an order to quash the removal order) was refused. The Minister imposed an exclusion period of five years pursuant to Regulation 20(1)(c) of the Regulations, meaning that the first applicant was unable to re-enter or seek to re-enter the State prior to 17th May 2021. In their judicial review application the applicants put forward a number of grounds for contending that the removal order and 5 year exclusion were unlawful. All were rejected by the trial judge. However, upon application being made to him for leave to appeal to the Court of Appeal pursuant to s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000 on the basis that the decision of the High Court involved a point of exceptional public importance and that it was desirable in the public interest that an appeal should be made, the trial judge certified the following point for appeal: whether, once a review decision is made pursuant to Regulation 21(4) of the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 confirming a removal order made under Regulation 20(1)(a) of those Regulations, that order itself loses its amenability to judicial review. The appeal from the judgment and order of the trial judge raised four issues for determination: (a) The certified question; (b) Does the administrative review of the decision to make the removal order which is available under the Regulations comply with the requirements of Directive (2004/38 EC), namely that such review must (i) be independent, (ii) be judicial in nature, (iii) enable matters that post-date the decision to be taken into account in the assessment of whether the applicant presents a present threat to public policy such as national security, and (iv) provide an oral hearing where the applicant may be present and be heard; (c) Whether the correct test was used when considering whether serious grounds of public policy existed for making the removal order; (d) Whether the proportionality exercise was properly carried out both in relation to the decision to make the removal order, including the five year exclusion, and in relation to the internal review of same; (e) Whether the failure of the Minister to provide any reasons for the exclusion period of five years invalidated the exclusion.

Held by Peart J that the certified question should be answered in the negative; a removal decision may be challenged by way of judicial review notwithstanding that an internal review has been sought and decision given on same. Peart J held that the trial judge was correct to conclude as he did that the redress procedures available under the Regulations, and by way of judicial review, fulfil the requirements of Article 31 of the Directive, and provide an effective remedy. Peart J held that as far as the test applicable to Mr Balc was concerned, the correct test was applied by each decision maker, despite the phraseology used in one or two instances as pointed out by the applicants; the documents must be read as a whole to properly interpret and understand their real meaning. Peart J held that he would quash the initial removal decision and the review decision dated the 3rd March 2015 since each contained the same defect as far as the consideration of proportionality was concerned. He would remit the matter for fresh consideration. Peart J held that the applicant was entitled to know why an exclusion order was considered necessary; if he does not know the reasons for these decisions it is impossible for him to challenge their legality.

Peart J held that he would allow the appeal and remit the matter to the Minister for a fresh consideration of the application for removal.

Appeal allowed.

JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVERED ON THE 7TH DAY OF MARCH 2018

1 The first and second named applicants are husband and wife. The third named applicant is their daughter who at the date of commencement of these proceedings in 2015 was aged 17 years, but is now an adult. They are all Romanian nationals who arrived in the State in March 2007.

2 The second and third named applicants have continued to reside lawfully in the State since their arrival. The first named applicant continued to reside lawfully in the State until he was removed from the State pursuant to a removal order dated the 26th February 2015 made by the Minister pursuant to the provisions of Regulation 20 of the European Communities (Free Movement of Persons) Regulations 2006 and 2008 ('the Regulations'). It is the lawfulness of this removal order that is at the heart of this appeal.

3 The removal of the first named applicant was effected on the 17th May 2016 following the order of the High Court (Eager J.) made on the 16th February 2016 whereby the applicants' application for reliefs by way of judicial review (including for an order to quash the removal order) was refused. An injunction which had restrained removal pending the determination of the judicial review proceedings expired upon the said refusal of reliefs.

4 In addition to making the removal order, the Minister imposed an exclusion period of five years pursuant to Regulation 20(1)(c) of the Regulations, meaning that the first named applicant is unable to re-enter or seek to re-enter the State prior to 17th May 2021.

5 In their judicial review application the applicants put forward a number of grounds for contending that the removal order and 5 year exclusion are unlawful. All were rejected by the trial judge. However, upon application being made to him for leave to appeal pursuant to s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000 (as amended) on the basis that the decision of the High Court involves a point of exceptional public importance and that it is desirable in the public interest that an appeal should be made, the trial judge certified the following point for appeal:

'Whether, once a review decision is made pursuant to Regulation 21(4) of the European Communities (Free Movement of Persons) (No.2) Regulations 2006 ( S.I. No. 656 of 2006) confirming a removal order made under Regulation 20(1)(a) of those Regulations, that order itself loses its amenability to judicial review.'

6 Once a point of exceptional public importance is certified for appeal pursuant to s. 5(3)(a) of the 2000 Act, the appellant is not confined to arguing only that point, as he would be for example on an appeal certified under s. 50A(7) of the Planning and Development Act 2000, as amended. In that regard s. 50(11) of the 2000 Act specifically provides that such appeal is confined to the certified point of law - see e.g. People (Attorney General) v. Giles [1974] I.R. 422 at 436 per Walsh J. This explains how it has come about that a number of grounds of appeal are relied upon in the present appeal in addition to the single ground certified by the trial judge. Before addressing the grounds of appeal and the submissions made to this Court, I will provide some factual background, and refer to the grounds relied upon in the High Court and the trial judge's conclusions.

Factual background

7 This family arrived here in May 2007. At all times Mrs Balc has worked hard as a part-time cleaner, and is highly regarded by her employer. Mr Balc does not appear to have been employed here, except perhaps for a very short period. Their daughter attended secondary school, and is now attending university having attained excellent results in her Leaving Certificate examinations. The testimonials provided to the Minister and to the High Court in respect of both mother and daughter speak of each in glowing terms. These facts make it all the more unfortunate that Mr Balc committed what for him was a first, but very serious criminal offence (sexual assault), on the 3rd June 2010 involving what was described by the sentencing judge as 'quite a degree of aggression', and to which he very belatedly pleaded guilty on the first day of his trial on the 24th January 2014. He received a three year prison sentence, with the final eighteen months suspended on certain conditions. It is that offence alone which has formed the basis for the decision to make a removal order and to exclude him from the State until 2021. He was imprisoned from the 24th January 2014 until his early release on the 6th March 2015, whereupon he was immediately re-arrested for the purposes of his removal from the State.

8 The conditions imposed for the purpose of suspending part of the prison sentence were the following:

(a) keep the peace and be of good behaviour towards all the people of Ireland from the date of his release from serving the...